Sept. 26, 2007: Central rape lawsuit called complicated, significant

Melanie Hughes and Genevieve MarshallOf The Morning Call

The Allentown School District is embroiled in what attorneys say is one of the most complicated legal cases they have come across in years. It could have a major impact on other school districts accused of negligence when students are hurt by other students.

A U.S. District Court judge set the stage when, in a ruling made public Monday, he gave the go-ahead to a lawsuit that alleges that school officials' negligence led to the rapes of four first-grade boys by a 12-year-old student at Central Elementary School. The plaintiffs are three of the boys and their parents.

"This case is something you don't see every day," said Allentown lawyer John Waldron, a federal and state trial litigator for 25 years. "It's complex and it's novel."

In his ruling, Judge Thomas M. Golden granted the plaintiffs a "period of discovery," which allows the families' attorneys time to sift through evidence that might show that district officials took missteps that made the boys more vulnerable. The length of time for discovery has not yet been set.

If the case is not settled before trial, district officials could be exposed to intense public scrutiny of their actions, or lack of them. And if the district decides to settle -- potentially for millions of dollars -- it could be vulnerable to similar lawsuits.

For that reason, the district won't settle easily, said Waldron, who has been following the case closely. "They want to take a hard line and not appear soft," he said.

The suit, filed in August 2006, claims that Central Elementary officials knew that the 12-year old boy with a history of behavioral and psychological problems raped a first-grader in 2003, but they failed to take substantive action against the boy, and the lack of action led to three other rapes.

One rape, in March 2004, was confirmed and the case was adjudicated. The 12-year old was sent to a juvenile facility and will remain in state custody until his 18th birthday.

The district maintains it's not liable under the U.S. Constitution for what happened.

By moving the case to the discovery phase, the attorneys representing the plaintiffs can have access to school district records and can get depositions from school district employees, students and parents to gather evidence.

Unless there are blatant memos detailing actions to cover up what happened or damaging deposition statements, or a smoking gun appears, the "state-created danger" theory will be a "heavy burden to prove," said JoAnne Epps, associate dean of Temple University Law School in Philadelphia.

"The district might decide to settle because it doesn't know how to defend the case, or it's too costly to defend or they don't want to put a child through the trauma of a trial," Epps said.

A settlement would not necessarily mean the district made a mistake, she said. "As a matter of law, even if you did the right thing, you could have terrible consequences," Epps said.

The lead attorney for the plaintiffs, James Pfeiffer of Pfeiffer, Bruno, Minotti & DeEsch of Easton, said he's pleased the case is moving toward a trial. He intends to file additional claims against the district in the coming weeks, but wouldn't say more than that.

"We also intend to pursue changes in the law to prevent other school districts and their employees from using their lack of legal responsibility as a defense," Pfeiffer said in a written statement.

John Freund, the Allentown School District solicitor, pointed out that the plaintiffs have the burden of proof. They must show there was a state-created danger, with the state in this case being the school district, Freund said.

At the crux of the district's case for dismissal of the lawsuit was whether school employees or two Lehigh Valley Hospital employees used their authority to take "affirmative action," making the victims more vulnerable than if the employees had not acted at all. An affirmative action can also mean not doing enough to protect students, the boys and their parents say.

They contend that school officials took many affirmative actions, including concealing the violent sexual assaults for at least four months, conspiring to cover up the assaults, failing to summon emergency medical treatment for the victims, and failing to remove the 12-year-old boy or isolate him.

Unfortunately, history does not lack examples of children in danger who were let down by government officials, Golden notes in his opinion. The judge cited several Pennsylvania cases involving authorities failing to protect children from abuse.

In one case, the court ruled that despite a horrific outcome, the state agency was not liable for inaction or falsely promising action.

Eight-year-old Annette Bright of Westmoreland County was shot to death in 2001 by Charles Koschalk. He was retaliating against her parents, who wouldn't let him see their 13-year-old daughter, Marcia.

Koschalk, then 35, had pleaded guilty to corrupting the morals of a minor but continued to see Marcia until his sentencing. They were spotted in public by a probation officer, who recorded the violation but didn't schedule a hearing until 10 weeks later. The girls' father called the police to arrest Koschalk, but officers never followed up.

The judge in the Bright case said the officers' failure to detain a violent person does not constitute an affirmative act.

But another Pennsylvania case allowed school districts to be held liable even if they are not directly responsible for a student's assault.

In the 1989 case Stoneking v. Bradford Area School District, a female student who had been sexually abused by a teacher successfully sued the McKean County district and its administrators. The court ruled that a school district can be held liable if there is proof it suppressed public knowledge of sexual assaults or dissuaded students from reporting abuse.

In the Allentown case, the alleged acts of violence are attributed to a third party.

But Golden wrote that the district and its employees could be liable if the plaintiffs prove an "active and concerted effort" to conceal crimes at Central Elementary. The school district might also be liable if its actions prevented a "private source of protection" -- other teachers or administrators -- from helping the boys, he said.

The judge cited a third Pennsylvania case, from 1996, in which police separated a husband and wife walking home from a Bucks County bar. Walking alone, the woman fell down an embankment and suffered brain damage.

The court ruled that the police could be liable for her injuries because, in separating her from her husband, they actively prevented him from rescuing her.